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TMI Blog2018 (6) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... he material on each and every one of the disputed invoices and the same has been reconfirmed by the adjudicating authority from Excise and Taxation officers, Ldh. who vide his certificate confirmed that certificate dated 10.10.2006 was duly issued by the office. As one of the Government Department has already certified that on the basis of the invoices in question, the asseessee has received the goods, therefore, relying on the decision of this Tribunal in the case of M/s Adhunik Alloys Ltd., the assessee is entitled to avail cenvat credit on the invoices in question on which the adjudicating authority allowed the cenvat credit to the assessee. CENVAT credit denied on the basis of the statement of Shri. Kamal Gupta son of the owner of M/s Gupta Transporter Company, who has stated that never transported any material for M/s Lakra Oil Trading (LOTC) - cross-examination not granted - Held that:- The appellant sought cross examination of Shri. Kamal Gupta. The said cross examination was not granted to the assessee. In that circumstances, the statement given by Shri. Kamal Gupta is inconclusive and the same cannot be relied upon - demand set aside. Demand of ₹ 1,75,350/- th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction. On the basis of the said investigation, the show cause notice dated 24.04.2006 was issued to the assessee to deny cenvat credit on furnace oil alleging that the same has not been actually receipt in their factory. The matter was adjudicated and during the course of adjudication various persons were cross examined and during the course of cross examination, the persons have admitted that they have transported the goods to M/s Nandan Auto Tech Pvt. Ltd.. A separate proceedings was also initiated against the assessee for alleged shortage of stock found during the course of investigation but the proceedings against the assessee has been dropped by the Ld. Commissioner (A) vide order dated 31.03.2016, thereafter, consideration of various evidence placed by the assessee and on verification of the sales tax records or certificate issued by Sales Tax Department with regard the movement of the said goods and receipt of the same in the factory of the assessee, the demand was dropped but a demand of ₹ 3,73,537/- was confirmed against the assessee and equivalent amount of penalty was imposed on the basis of the statements various transporters that they have not transported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransported without invoice by M/s APPL have been intercepted by any Government Department at any stage and no further corroborative evidence has been produced on record and the said statement of Shri. G.C. Arya although relied upon but no cross examination of Shri. G.C. Arya was granted, therefore, the same cannot be admissible evidences for confirmation of demand. 5. With regard to demand of duty of ₹ 1,01,048/- It is his submissions that the vehicles numbers mentioned on some of the invoices on which cenvat credit was availed by M/s Nandan were not tankers but the other vehicles. However, admittedly a large number of the vehicles were found to be tankers only. In those cases, where vehicle nos. were found to be of vehicles other than tankers, the numbers of the vehicles may have been erroneously mentioned in the invoice or the tankers may be plying with false number plates. However that cannot be a ground for denying cenvat credit only in a few stray instances, the vehicle numbers have been found to be of vehicles other than tankers. Therefore, cenvat credit cannot be denied. 6. It is further submits that invoices were accompanied by the goods and they have entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-receipt of furnace oil and reliance was placed on the same statements of the some of the persons as are relied upon in the show cause notice issued in the said case vide Final Order No. 238-242/2016-CHD dated 31.03.2016, this Tribunal has allowed the cenvat credit on furnace oil. Therefore, the demand against the assessee is not sustainable. Further, it is his submissions that the Revenue has taken the ground that the same adjudicating authority had vide order dated 30.03.2007 confirmed the demand of duty against M/s Garg Industries ltd., therefore, the impugned order qua dropping the demand is to be set aside is not sustainable. 9. As in the case of M/s Garg Industries ltd. this Tribunal vide its Final Order No. 431 to 438/2007-EX dated 31.03.2007 , remanded the matter back for fresh adjudication and in the remand proceedings, vide order dated 06.01.2009, the demand against M/s Garg Industries Ltd. was dropped, therefore, as per the doctrine of merger, the Order-In- Original dated 30.03.2007 has been merged in Order In Original dated 06.01.2009, therefore, the Revenue cannot take contrary views. It is his submissions that the Revenue has relied upon the statement of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inputs in question. As the appellant has produced the certificate issued by Excise Taxation Officer of Punjab therefore, the appellant cannot be denial cenvat credit merely, on the ground that vehicle number have not crossed at ICC. I further find that in the case of Hitkari Industries Ltd. 2008(226) ELT 583 (Tri. Del.) and Himalayan Pipe Industries- 2013 (293) ELT 739 (Tri. Del.) this tribunal has also observed information revealed from Sales Tax Department are not reliable as the appellant has produced certain documents which show with the transaction have been declared by the appellant. Admittedly, in the case the appellant has produced the certificate issued by the Excise Taxation Department, certifying that these goods have been received in their factory, therefore, the cenvat credit cannot be denied. 11. The revenue has also relied on the various statements of supplier/transporters and also relied on the statement of Parveen Kumar Garg of M/s LOT initially made on 25.02.2005. This same was retracted by him on from next date 26.02.2005 which was despatched on 28.02.2005 thereafter, various summons have been issued to Sh. Praveen Kumar Garg but Sh. Praveen Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,139/-is set aside. 18. With regard to the demand of ₹ 1,75,350/- that has been confirmed on the basis of the statement of Shri. G.C. Arya of M/s APPL. The said statement was retracted by Shri. G.C Arya at first available opportunity and no cross examination was granted to the asssessee of Shri. G.C. Arya, therefore, the statement recorded of Shri. G.C. Arya have no relevance to deny cenvat credit as the same has not been tested by way of cross examination, therefore, the demand of ₹ 1,75,350/- is also set aside. 19. With regard to the demand of ₹ 1,01,048/-which has been confirmed on the ground that the vehicles which have been mentioned in the invoices are not capable of transportation of goods in question as the vehicles are not tankers. Admittedly, without tankers, the impugned goods cannot be transported and the appellant has failed to come up with any supporting explanation to the allegation. In that circumstances, the demand of ₹ 1,01,048 is confirmed. In the facts and circumstances of the case, no penalty is imposable on the assessee. 19. In view of the above analysis, following order is passed: (A) The demand of ₹ 1,01,048/- is con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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